Freeborn & Anor v Marcal (t/a Dan Marcal Architects)

Where Civil Procedure Rules 1998, rule 3.13 permits the court to order otherwise, a written timetable issued by the court office may constitute such an order. A party is generally entitled to rely on the date specified without investigating whether the court office made an error. If a breach has occurred, relief from sanctions should be assessed under the three-stage test in Denton v TH White Limited and Others: seriousness and significance, reason for the breach, and all the circumstances. Minor, inadvertent delay caused by reliance on court communication, causing no prejudice or disruption, will ordinarily justify relief. Parties should assess whether a breach exists and whether an application is proportionate before adopting an unnecessarily punitive stance.

The claimants and the defendant were preparing for a case management conference. The court office directed the parties to file and exchange costs budgets not less than seven days before the hearing, although rule 3.13 ordinarily required filing 21 days beforehand.

The claimants served their budget within the 21-day period. The defendant relied on the court office letter and served his budget seven days before the hearing. The claimants argued that the defendant should be treated as having filed a budget limited to applicable court fees, requiring an application for relief from sanctions. The court determined whether the letter varied the rule and, alternatively, whether relief should be granted.

1. The defendant was not required to seek relief from sanctions. Rule 3.13(1) of the Civil Procedure Rules 1998 states that the 21-day period applies unless the court orders otherwise. The court office letter stipulated a different filing date and amounted to an order otherwise. The defendant was entitled to rely on it.
2. A solicitor is ordinarily entitled to rely on a date specified in writing by the court office. It was immaterial that further consideration might have suggested that the letter contained an administrative error or referred to an earlier version of the rule. Court offices may word letters differently from judges, and judges cannot approve every administrative communication.
3. Alternatively, relief would have been granted. Applying the three-stage test in Denton v TH White Limited and Others [2014] EWCA Civ 906:
• the delay was not serious or significant because no hearing was lost, no actual delay occurred, and the costs-budget process was completed at the conference;
• reliance on the court office letter was the best possible reason for the delay; and
• relief was just and reasonable because the breach was inadvertent, caused no prejudice to the claimants, and refusal would substantially prejudice the defendant.
4. The claimants’ stance was erroneous. The defendant therefore succeeded on the application, and the claimants were ordered to pay the defendant’s costs of and occasioned by it, summarily assessed at £1,300.
5. Post-Mitchell v News Group Newspapers Limited [2013] EWCA Civ 1537 and Denton v TH White Limited and Others, strict compliance remains important, but it must not be used abusively. Parties should consider whether an alleged breach exists and whether seeking or opposing relief is proportionate.